Sarla Mudgal v. Union of India (1995) 3 SCC 635

Author: Nandini Achhra, Vivekananda institute of professional studies

Edited By: Gyanu Patel, Amity University (Lucknow)

A) ABSTRACT / HEADNOTE
While considering this, it has to be noted that the world generally follows the concept of monogamy, which in turn is a conventional rule recognized by all the legal systems over the world. A contravention of this general rule, that is, bigamy or polygamy, is also punishable under law. Thus, bigamy is a practice that is considered an offense in our country. However, in India, people from the Islamic religion are allowed to have up to four wives.

The analysis explains the concept of bigamy and the reasons why it is an offense. However, this will be incomplete without mentioning the Sarla Mudgal case, which has been a leading case of bigamy in India. Thus, the present analysis explains the facts, issues, and judgment of the case and also explains the concept of bigamy under different laws in light of the above case. He has also reviewed in the article the laws against bigamy in India and the landmark judgments on the same.
Keywords : monogamy, Bigamy, polygamy , islamic, religion

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT
Our Constitution under Article 25 gives the freedom to practice and profess any religion which also includes the freedom to convert to any religion other than one assigned to him by birth. However, this provision is sometimes misused with diverse religions and personal laws. Bigamy is punishable for all religions under IPC, except those tribes or whose personal law permits polygamy, such as the Muslim law. Bigamy can only be committed by renouncing his religion and adopting Islam. Not uncommon are the instances of bigamy in the names of men.

Under the Parsi Marriage and Divorce Act and Special Marriage Act: the second marriage of any party shall be void if such party shall have already subsisting spouse at the time of marriage. This means a second marriage is rendered null and void while a first marriage is still subsisting. Also, if a person converts to any other religion where polygamy is allowed and marries a person while his or her first marriage solemnized before the conversion is still subsisting, it shall not be valid because the first marriage solemnized before the conversion has not been dissolved yet. However, the Hindu Marriage Act, of 1955 has not specified the status of a person marrying after conversion. It declares a subsequent marriage between two Hindus is void if their partner is living, and they have not divorced at that time. This question came up at some length before the Supreme Court in the landmark case of Sarla Mudgal & Ors. V. Union of India and it settled the ambiguity surrounding the rights, duties, and obligations of people who change religion to defeat the law. The court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy.

D) FACTS OF THE CASE
These were four petitions heard together under Article 32 in the Supreme Court of the Indian Constitution. First is Writ Petition no. 1079/89, with two petitioners; the first petitioner was Ms. Sarla Mudgal, who was the President of a registered society called Kalyani, a Non-Profit Organization working for the welfare of needy families and distressed women. The second petitioner was Meena Mathur, who had been married to Jitender Mathur since 1978. The couple had three children who were born out of wedlock. Petitioner 2 had come to know that her husband contracted a second marriage with one Sunita Narula alias Fathima after both of them converted themselves to Islam. She alleges that the conversion of her husband to Islam is only to marry Sunita, thereby avoiding Section 494, IPC. Let there be no doubt that the appellant pleads that after converting to Islam, he could marry four wives and prays that hence he shall not be punishable under Section 494 of the Indian Penal Code, 1860 as he can avail of the advantage that the concept of polygamy is legal under Mohammedan Law. The other was filed by Sunita Narula alias Fathima, a Muslim by religion; it was registered as Writ Petition 347 of 1990. Therein, the appellant asserted that she and the respondent adopted the Islamic religion and after the marriage, out of their union, a child was born but on account of the influence of respondent No.3-Meena Mathur- he had to make an offer in 1988 and undertook to convert back to Hinduism and maintain his first wife and three children. She also averred that the husband was not maintaining her and she had no other protection under Hindu law or Muslim law. Yet another petition was filed by Sunita Narula alias Fathima, registered as Writ Petition 347/1990, wherein it was contended that she and the respondent converted to Islam to marry and a child was born out of wedlock. However, under the influence of Meena Mathur, the respondent had also given an undertaking in the year 1988 that he would take a reconvert back to Hinduism and maintain his first wife and three children. She further contended that the husband was not even maintaining her, and she did not have any other protection in either Hindu law or Muslim law. Thirdly, a petition registered as Writ Petition 424/1992 was filed in the Apex Court. The petitioner Geeta Rani got married to Pradeep Kumar in 1988 according to the Hindu rituals. In December 1991, the Petitioner learned that her husband converted to Islam and married another woman, Deepa. The Petitioner asserts that the only purpose of converting to Islam was to facilitate the second marriage and to escape from the matrix of Section 494 of IPC. Sushmita Ghosh who was the petitioner in the Civil Writ Petition 509/1992, had married G.C.

E) LEGAL ISSUES RAISED (minimum 2 legal issues)
1. Whether a Hindu husband married under Hindu law, by embracing Islam can solemnize a second marriage? Whether such a marriage, without the first marriage being dissolved under law, be a valid marriage qua the first wife who continues to be Hindu?
2. Whether the apostate husband, that is one who renounced Hinduism, is guilty of the offense under Section 494 of the IPC?

F) PETITIONER / APPELLANT’S ARGUMENTS
On behalf of the petitioners, it was contended that marriage was solemnized at the time when the husband converted to Islam, thereby signifying that the sole intent behind conversion was for the solemnization of marriage, and polygamy is allowed in this religion.
Next, it was further argued that to convert to Islam only for marriage purposes, infringed their rights provided under personal laws.
The first marriage still subsists, and the husbands solemnizing the second marriage without dissolving the previous is an infringement of personal rights.
Further, it was constantly contended that another purpose was to circumvent the sections on bigamy and to evade the punishment under Section 494 of the Indian Penal Code, 1860. The other petitioners also argued that their husbands compelled them to embrace Islam only on the ground that they converted, thus violating their fundamental right to religion under Article 25 of the Constitution.

G) RESPONDENT’S ARGUMENTS
Resisting the contentions made by the petitioners, the respondents have submitted that the provisions of the Hindu Marriage Act, 1955 and, the Indian Penal Code, 1860 arguendo do not apply in their case. Viewed from a religious angle, Islam contemplates polygamy, and they can have four wives while the first marriage subsists. They furthered their argument that the Muslim personal law submits that if one from between the spouses does not return in kind or accept the similar religion of another, then the marriage comes to an end.
Thus, the one who has converted the other has to also do it since he or she is duty-bound to do it or the marriage dissolves, therefore, the spouse who converted and married in Islam may not be punished.
The petitioners In all the petitions pleaded a common plea that the moment they embrace Islam, they can have four wives even though they have a first wife who remains Hindu. Therefore, the Hindu Marriage Act, of 1955, and Ire do not apply them.

H) JUDGEMENT
a. RATIO DECIDENDI
After these elaborate discussions, the court ultimately arrived at the following: The Hindu Marriage Act, 1955 is a socially dynamical legislation in the realm of statute – when a marriage is solemnized under that Act, certain rights and status are acquired by both the parties, and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would destroy the existing rights of the spouse who continues to be Hindu. A marriage performed under the Act cannot be dissolved except on the grounds given under Section 13 of the same Act.
The second marriage of an apostate would therefore be an illegal marriage qua his wife who married him under the Act and continues to be Hindu.

This reasoning is underpinned by the doctrine of traditional Hindu law with the doctrine of indissolubility, which states that the law did not intend the conversion to have the effect of dissolving a Hindu marriage.

It also held that such a second marriage, solemnized by conversion to Islam, is violative of justice, equity, and good conscience. It also emphasized the harmonious working of the two systems of law, just to bring harmony between the two communities. The court further held that the apostate husband would be guilty under Section 494 of IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the Indian Penal Code has different intents. Conversion to Islam and contracting of a fresh marriage would not ipso facto dissolve the prior Hindu marriage under the Act, though it would be a ground for divorce. But from the ingredients of Section 494 explained elaborately in the earlier parts of the article, it can be inferred that the second marriage would be void, and the apostate husband would be guilty under Section 494 of IPC. Finally, the court also advocated for the imposition of a Uniform Civil Code (“UCC”) in the Indian legal system, that shall prohibit an Indian from infringing upon the personal law of another Indian. The court further directed that the Government of India, through the Secretary of the Ministry of Law and Justice, file an affidavit about the action taken by the Government of India towards UCC to be provided to the citizens of India.

b. OBITER DICTA- But in the course of determining the issues in the case, his lordship Justice Kuldeep Singh found it fit to observe that marriage is the foundation of every civilized society under which when a relationship is formed and the law is involved, it binds the parties to carry out certain obligations. It is an institution in which the public at large is concerned about its maintenance. It can be said that marriage is the foundation of a family, without which there can be no society. It was also observed that since monogamy is a rule in Hindu law, Hindu husbands usually convert to Islam for polygamy which is allowed therein. While deciding whether conversion of one religion to another would dissolve the subsisting marriage, the learned judge had to rely upon a catena of judicial pronouncements.

I) CONCLUSION & COMMENTS
In the case of Gul Mohammed v. Emperor, 1947, the accused took a Hindu woman to be his wife fraudulently and contracted marriage with her after forcibly having her converted to his religion, in this case, Islam.
It was held that this conversion of Hindu married women to another religion does not ipso facto dissolve her marriage.
It was also observed that in India, a marriage is governed by the personal laws of different religions. A marriage solemnized under one religion cannot be dissolved by another personal law just because one of the spouses changed his or her mind and converted to another religion. It was further observed that when a marriage is solemnized under Hindu law, the parties acquire the status and obligations according to the law governing Hindu marriages and if either of them is allowed to dissolve the marriage by converting to another religion, it would affect and violate the rights of another spouse who is still a Hindu. Thus, there can be no dissolution of marriage automatically upon conversion. It was observed that a marriage solemnized under Hindu law can only be dissolved according to the grounds mentioned in the Hindu Marriage Act, of 1955. The court also placed reliance on the judgment of the case ofRobasa Khanum v. Khodabad Bomanji Irani (1946)wherein it has been held by the court that the conduct of the spouse who converted to Islam has to be judged based on the rule of justice, and equity and food conscience.
Another aspect is that the second marriage while the first subsists offends principles of natural justice as well. The purpose of conversion should not be to allow Hindu husbands to convert to enjoy polygamy. Regarding the proposed implementation of a Uniform Civil Code, it has been noted that the Constitution itself provides for a uniform civil code under Article 44. There has, however, been no development or effort at achieving this end. It has also been observed that the implementation of UCC would bring in national integrity and prevent differences in matters related to personal laws.

J) REFERENCES
Important Cases Referred
a. Khanum v. Khodabad Bomanji Irani (1946)
b. Jafar Abbas Rasool Mohammad Merchant v. State of Gujarat (2015)
c. Khursheed Ahmad Khan v. State of U.P. (2015)
d. Sri Anand C v. Smt. Chandramma (2022)